Citation Nr: 9910682
Decision Date: 04/16/99 Archive Date: 04/29/99
DOCKET NO. 95-09 321A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to service connection for a disorder manifested
by bilateral foot pain.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
S. Belcher, Associate Counsel
INTRODUCTION
The veteran had verified service from May 1980 to May 1983.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 1994 rating decision of the Los
Angeles, California, Regional Office (RO) of the Department
of Veterans Affairs (VA), which denied service connection for
a bilateral foot disorder.
FINDING OF FACT
The veteran has not provided competent medical evidence
demonstrating a diagnosis of a bilateral foot disorder
related to active service.
CONCLUSION OF LAW
The veteran has not submitted evidence of a well-grounded
claim for service connection for a disorder of the feet.
38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
Service medical records include a September 1979 entrance
medical report showing that the veteran's feet were normal.
In an accompanying report of medical history, the veteran
indicated that he did not have or had not had foot trouble.
A December 1980 medical record shows a diagnosis of a
fractured right foot. A March 1981 x-ray report indicates
that the veteran complained of morning stiffness and
commented that he had injured his right foot eight years
earlier. The report shows some bony demineralization of the
right foot. The physician was unclear whether the diagnosis
represented a residual from the pre-service injury or a new
development of arthritis. An April 1981 x-ray report shows a
provisional diagnosis of left foot pain and left heel pain;
and the impression was no significant abnormalities. A
consultation report, dated in the same month, shows a
provisional diagnosis of osteoporosis of the feet. A May
1981 medical record shows a questionable assessment of
demineralization of both feet. The veteran complained,
according to a June 1981 medical record, of a painful left
heel spur and the physician indicated that a foot x-ray was
negative for demineralization of the left foot bone and
provided a diagnosis of plantar fasciitis. A November 1981
medical report, which shows that the veteran complained of a
left foot problem, is the last report of record pertinent to
the feet. A separation report is not of record.
A post-service VA consultation report dated in February 1986
indicates that the veteran complained of right foot pain when
sitting in the car; the provisional diagnosis was foot pain,
etiology unknown.
According to a January 1994 report of a VA examination, the
veteran indicated that while participating in a hand-grenade
exercise during basic training in the summer of 1980, he
tripped and fell over a ditch and injured his left foot. An
x-ray of the left foot was taken and no fractures were noted.
He indicated that his left foot pain and edema gradually
decreased and the left foot had returned to normal after
approximately ten days. Approximately one month after this
injury, the veteran developed severe mid foot pain and it
continued over the following four months. In the fall of
1980, he developed severe bilateral mid foot pain and left
heel pain; an x-ray was taken and no fractures were noted.
The veteran indicated that bilateral arch supports were
provided to him and he noted a decrease in mid foot pain
after he began wearing the supports. The examiner noted that
the metatarsal and tarsal areas of the dorsum of the right
foot were moderately tender, and mildly tender over the same
areas of the left foot, including the arch. The veteran
complained of pain with both right and left foot motion. The
physician noted a well-healed surgical scar at the base of
the right second toe from a carpet knife laceration fifteen
years prior to the examination. An x-ray of the feet was
unremarkable. The physician noted that the etiology of pain
to the right foot and left heel remained undetermined.
An August 1998 report by an independently contracted
physician, Dr. M.E, indicated that the veteran complained of
bilateral foot pain and instability, and denied current
treatment. Dr. M.E. noted that there were no objective
aspects of the disability. The veteran provided a history
indicating that he had participated in a hand-grenade
throwing exercise during basic training and fell over a
ditch, injuring his left foot. He had pain and the foot
became swollen. Dr. M.E. reported the following: AP/and the
lateral x-ray views of the veteran's feet were normal; no
arthritis involving the tarsal bones or metatarsal junctions;
normal weight-bearing density to the bone; and the veteran's
shoes showed normal wear patterns. The physician also noted
that the veteran's "very abnormal wide base staggering gait
which he demonstrated in the examining room, did not appear
to be organic and was not demonstrated upon leaving the
room." The reported diagnosis was bilateral foot pain. Dr.
M.E. stated that the veteran has "no objective evidence for
disability."
Pertinent Criteria
Service connection may be granted for a disability resulting
from personal injury suffered or disease contracted in line
of duty or for aggravation of preexisting injury suffered or
disease contracted in line of duty. 38 U.S.C.A. §§ 1110,
1131 (West 1991); 38 C.F.R. § 3.303 (1998).
In addition, service connection may be granted for any
disease diagnosed after discharge, when all of the evidence,
including that pertinent to service, establishes the disease
was incurred in service. 38 C.F.R. § 3.303(d). For the
showing of chronic disease in service, there are required a
combination of manifestations sufficient to identify a
disease entity, and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word chronic.
Continuity of symptomatology is required only where the
condition noted during service is not, in fact, shown to be
chronic or when the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b).
The United States Court of Appeals for Veterans Claims (known
as the United States Court of Veterans Appeals prior to March
1, 1999) (hereinafter, "the Court") has held that the
chronicity provision of 38 C.F.R. § 3.303(b) is applicable
where evidence, regardless of its date, shows that a veteran
had a chronic condition in service or during an applicable
presumptive period and still has such condition. Such
evidence must be medical unless it relates to a condition as
to which, under the Court's case law, lay observation is
competent. If the chronicity provision is not applicable, a
claim may still be well grounded if the condition is observed
during service or any applicable presumptive period,
continuity of symptomatology is demonstrated thereafter, and
competent evidence relates the present condition to that
symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997).
Pursuant to 38 U.S.C.A. § 5107(a) (West 1991), a person who
submits a claim for benefits under a law administered by the
Secretary shall have the burden of submitting evidence
sufficient to justify a belief by a fair and impartial
individual that the claim is well grounded. The Court has
held that a well-grounded claim is "a plausible claim, one
which is meritorious on its own or capable of substantiation.
Such a claim need not be conclusive but only possible to
satisfy the initial burden of § [5107(a)]." Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990). The Court has also
held that although a claim need not be conclusive, the
statute provides that it must be accompanied by evidence that
justifies a "belief by a fair and impartial individual"
that the claim is plausible. Tirpak v. Derwinski, 2 Vet.
App. 609, 610 (1992).
The Court has held that "where the determinative issue
involves medical causation or a medical diagnosis, competent
medical evidence to the effect that the claim is 'plausible'
or 'possible' is required." Grottveit v. Brown, 5 Vet. App.
91, 93 (1993) (citing Murphy, at 81). The Court has also
held that "Congress specifically limits entitlement for
service-connected disease or injury to cases where such
incidents have resulted in a disability. In the absence of
proof of a present disability there can be no valid claim."
Brammer v. Brown, 3 Vet. App. 223, 225 (1992); see also
Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Lay
assertions of medical causation cannot constitute evidence to
render a claim well grounded under 38 U.S.C.A. § 5107(a)
(West 1991); if no cognizable evidence is submitted to
support a claim, the claim cannot be well grounded. See
Grottveit, 5 Vet. App. at 93 (Court held that lay assertions
of medical causation cannot constitute evidence to render a
claim well grounded); see also Espiritu v. Derwinski, 2 Vet.
App. 492, 494 (1992) (Court held that a witness must be
competent in order for his statements or testimony to be
probative as to the facts under consideration).
In Caluza v. Brown, 7 Vet. App. 498, 506 (1995) the Court
reaffirmed these holdings, stating in order for a claim to be
well grounded there must be competent evidence of current
disability (a medical diagnosis), of incurrence or
aggravation of a disease or injury in service (lay or medical
evidence), and of a nexus between the in-service injury or
disease and the current disability (medical evidence). In
the absence of competent medical evidence of a causal link to
service or evidence of chronicity or continuity of
symptomatology, a claim is not well grounded. Chelte v.
Brown, 10 Vet. App. 268, 271 (1997).
Analysis
In this case, the Board finds that the veteran has not
submitted competent medical evidence demonstrating a current
disorder manifested by bilateral foot pain related to active
service. An objective diagnosis is necessary in order to
warrant service connection. A subjective finding of foot
pain is not a diagnosis, but is a symptom of a disorder. See
38 C.F.R. § 3.303(b). There is no objective evidence of a
current disability manifested by bilateral foot pain, as
noted by Dr.M.E. and consistent with the January 1994 VA
examination report. The x-ray referred to in the August 1998
report by Dr. M.E. indicated that the veteran's feet were
normal. Furthermore, the Board notes that the veteran denied
current treatment of the feet. The existence of a current
disability is the cornerstone of a claim for VA disability
compensation. 38 U.S.C.A. § 1110; see Degmetich v. Brown,
104 F.3d 1328 (1997); see also Brammer v. Derwinski, 3 Vet.
App. 223, 225 (1992) ; Rabideau v. Derwinski, 2 Vet. App.
141, 144 (1992).
The Board acknowledges the veteran's contention that he has
had continual foot pain since service and this is supported
by competent evidence of his complaints. As a lay person,
the veteran can provide evidence of visible symptoms. See
Dean v. Brown, 8 Vet. App. 449, 455 (1995); Espiritu, 2 Vet.
App. 492. However, without medical knowledge, he is not
competent to offer opinions or to make such conclusions
regarding medical diagnosis. See Espiritu v. Derwinski, 2
Vet. App. 492 (1992) (holding that lay persons are not
competent to offer medical opinions). No competent
professional has established a post-service diagnosis of a
foot disability.
The Board recognizes that the Court has held that there is
some duty to assist the veteran in the completion of his
application for benefits under 38 U.S.C.A. § 5103 (West 1991
& Supp. 1998) even where his claim appears to be not well-
grounded where an appellant has identified the existence of
evidence that could plausibly well-ground the claim. See
generally, Beausoleil v. Brown, 8 Vet. App. 459 (1966); and
Robinette v. Brown, 8 Vet. App. 69 (1995), as modified in
this context by Epps v. Brown, 9 Vet. App. 341, 344 (1966).
In his April 1995 substantive appeal and February 1998
statement, the veteran referred to 1983 and 1984 VA treatment
specific to the feet received in San Francisco. The Board
notes that the RO made two requests for the veteran's VA
outpatient records from the San Francisco VA facility dated
1983 to 1984 and that they are of record. However, treatment
specific to the feet is not shown until 1986. It appears
that all San Francisco VA records pertinent to the veteran
are associated with the claims file.
The Board also notes that the veteran's separation medical
report, if completed, is not of record. The RO requested all
available service records from the National Personnel Records
Center and of the service records received, there is no
indication that there are any missing records. As such, the
Board finds that it has met its duty to assist the veteran in
the completion of his application. 38 U.S.C.A. § 5103.
Accordingly, as there is no competent evidence of a current
diagnosis of a disorder manifested by bilateral foot pain, or
a nexus between a current foot disability and service, the
veteran's claim is implausible and not well-grounded.
Therefore, the claim must be denied. 38 U.S.C.A. § 5107(a).
ORDER
Service connection for a disorder manifested by bilateral
foot pain is denied.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals